Amicus curiae briefs
Amicus curiae briefs, often referred to as "friend of the court" briefs, are legal documents submitted to a court by non-parties to a case, aiming to provide additional information, perspectives, or arguments that may assist judges in their decision-making process. These briefs can highlight strengths and weaknesses on both sides of a case, contributing to a more nuanced understanding of the issues at hand. While amici, the plural of amicus, must seek permission from the judge to participate, they are generally expected to comment solely on the issues raised by the parties rather than introducing new topics.
In practice, amici can operate independently, presenting their arguments, or in coordination with one of the parties to emphasize novel perspectives without directly challenging the established arguments of that party. The effectiveness of an amicus brief is often enhanced by citing recent case law, ideally those not older than five to ten years, and ensuring that cited precedents are still valid. Judges have discretion regarding the weight they give to these briefs, which can range from thorough consideration to minimal review. Overall, amicus curiae briefs serve an important role in legal proceedings by introducing diverse viewpoints and enriching the judicial discourse.
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Amicus curiae briefs
SIGNIFICANCE: An amicus brief need not take one side of a case exclusively. The purpose of these briefs is to assist judges. One can assist the judge most by pointing out the strengths and weaknesses of both sides of a case.
Judges have the power to summon advisers to their aid. This power has led to the use of “friend of the court” briefs, known in Latin as amicus curiae briefs. Modern judges can, if they wish, call in advisers and ask for written or oral advice, but it has become much more common for friends of the court to nominate themselves. Nevertheless, as one needs the permission of the judge to be an amicus curiae, the first paper to be filed is likely a petition to be admitted as an amicus.
Amici (the plural form) must follow certain rules. For example, they are not supposed to bring new issues into the case—that is a right reserved to the parties. Amici must comment only on the issues raised by the parties. Amici work in two general ways. In some cases they simply file briefs expounding their theories and argue that a certain action should or should not be taken. In others their work is coordinated by one or the other party. For example, it is common in such cases for the parties to stick to fairly conservative lines of argument in their briefs, arguing according to precedents and case law, while the novel arguments that might help them are presented by amici. In this way, a party does not offend the judge by raising unusual arguments, but the judge still hears these arguments and, if interested, can respond to them. Judges may give amicus curiae briefs as much or as little attention as they think they deserve. They can read them at length several times or glance at their titles and toss them aside.
Amicus curiae briefs are best if the cases cited are recent—not more than ten years old in most cases, and preferably not more than five years old. They are most effective if they have been carefully “shephardized,” or, checked against Shephard’s Citations to ensure that the cases cited are still considered valid law or to point out how they differ from those that are valid law.
Bibliography
Canelo, Kayla S. "The Supreme Court, Ideology, and the Decision to Cite or Borrow from Amicus Curiae Briefs." Sage Journals, vol. 5, no. 2, 2022, doi.org/10.1177/1532673X211032111. Accessed 19 June 2024.
Emanuel, S. L. Criminal Procedure. Aspen, Colo.: Aspen Publishing, 2003.
Franze, Anthony J. and R. Reeves Anderson. "Amicus Curiae at the Supreme Court: Last Term and the Decade in Review." The National Law Review, 18 Nov. 2020, www.arnoldporter.com/-/media/files/perspectives/publications/2020/11/amicuscuriae-at-the-supreme-court.pdf. Accessed 19 June 2024.
Schiller, N. Criminal Procedure for the Criminal Justice Professional. Eagan, Minn.: West Publishing, 2001.